PREVIOUS ARREST AND PRESUMPTION OF INNOCENCE IN BRAZIL: THE CASE OF OPERATION CAR WASH AND ITS IMPACTS ON THE PENAL SYSTEM

Abstract

This research aimed to analyze the application of pretrial detention in the context of Operation Lava Jato, examining its compatibility with the constitutional principle of presumption of innocence. It consisted of a qualitative, exploratory, and descriptive study, using a narrative review technique based on bibliographic and documentary analysis. The search for studies was conducted in legislation, doctrine, judicial decisions, and scientific articles available on digital platforms, as well as in the official databases of the Supreme Federal Court (STF) and the Superior Court of Justice (STJ). Inclusion criteria encompassed works, legal texts, and decisions fully published in Portuguese and available online; exclusion criteria were those that did not meet these requirements. It was found that pretrial detention, an exceptional precautionary measure, was widely used during Operation Lava Jato, often for purposes that exceeded its preventive nature, taking on the character of premature punishment. Such practice contributed to the relativization of the principle of presumption of innocence, provided for in art. 5, item LVII of the Federal Constitution, and to the strengthening of a punitive logic within the Brazilian criminal system. Furthermore, landmark decisions of the STF, such as those issued in Constitutional Declaratory Actions (ADCs) nº 43, 44, and 54, as well as in Habeas Corpus nº 164.493/PR, reaffirmed the centrality of constitutional guarantees, representing an institutional response to excesses committed within the scope of the operation. The analysis demonstrated that indiscriminate use of pretrial detention compromises the legitimacy of criminal justice and highlights the need for strict observance of the principles of necessity, proportionality, and legality. It was concluded that the strengthening of the Democratic State of Law depends on the adoption of precautionary practices compatible with penal guarantees, ensuring that pretrial detention is effectively an exceptional measure and that respect for fundamental rights prevails even in scenarios of intense social and political pressure.